ment was flatly contradicted, and the jury has seen fit to accept the statement of the president of the bank.

[1] Appellants insist that a verdict should have been directed in their favor, and in support of this position they cite cases holding that when a bank simply discounts a note and credits the amount thereof to the indorser's account, without paying to him any value for it, the transaction does not constitute the bank a purchaser for value of the note. This appears to be a correct statement of the law; but this issue does not appear to have been raised in the court below, and no specific instruction to that effect was asked. Moreover, it appears to us it would have been abstract, had it been given. There is a very close question of fact as to whether or not the officers of the bank knew what the consideration of the notes was before purchasing them; but there appears to be no real question that the bank paid full value for the notes, and that within a short time, and before the maturity of the notes, or either of them, Gunter drew checks against this deposit for the larger part of it, and all of it may have been so withdrawn, so far as the proof shows to the contrary. But, of course, the fact that it paid value for the notes would not entitle the bank to collect them from the maker, if it was not an innocent purchaser for value before maturity. That question appears to have been fairly submitted to the jury, although an instruction numbered 5, asked by appellants, which might well have been given to the jury, was amended by striking out the latter part of it.

[2] Appellants strongly complain that the action of the court in not giving the fifth instruction as requested was error which calls for reversal of the case. The portion of the instruction stricken out was to the effect that the bank must have purchased the notes without notice or knowledge of their infirmity, or of circumstances which would have put it upon inquiry, and which, if followed up, would have led to the knowledge of the facts. But the court gave the following instruction: "The court instructs the jury that, before one can become a bona fide and innocent holder of commercial paper, it must appear that it was acquired without notice or knowledge of defenses, or circumstances which would put him on inquiry that such defenses existed." The instruction given embodied substantially the statement of law contained in the part of the fifth instruction which was stricken out, and we think no prejudice resulted to appellants on that account.

[3] Appellants complain of the action of the court in giving the following instruction: "No. 2. I charge you that the notes sued on are commercial paper under the law, and are so transferred under the payee, and when offered for sale by the payee before they are

not required to investigate as to the consideration for what the notes were given, and has the right to assume that they are legal and valid obligations of the party executing the notes, unless he has notice or knowledge to the contrary."

We think this instruction was not an improper one. In the case of Winship v. Merchants' Bank, 42 Ark. 22, certain negotiable promissory notes were taken by an agent to himself for debts due his principal, and before their maturity they were transferred to a bank as security for advances made to the agent; the bank making the advances on them before maturity, in good faith, in the usual course of business, and without notice of the principal's equity. The principal sued the bank for the amount of the notes, and in the opinion in that case it was said: "Counsel for appellants contends that the bank, having received the notes merely by way of security for a debt, is not entitled to be protected as a bona fide holder. Our reply to this is that the notes were in form negotiable, that they were transferred to the bank before maturity, that the bank received them in good faith and in the usual course of business, and is consequently unaffected by equities of which it had no knowledge. The facts that Camp was the payee of the notes, and that they were in his possession, were prima facie evidence that they were his property; and without notice to the contrary the bank had a right so to treat them, and was under no obligation to inquire whether they were held by him as agent or as owner." So here, if the bank had no knowledge or notice, it was under no duty to inquire what the consideration for the notes was.

Other instructions told the jury that if the bank knew what the consideration was, or had notice of such circumstances as should have put it upon inquiry, it was not an innocent purchaser, and there was no conflict between the instructions. This instruction numbered 2 only dealt with the right of a bank to purchase commercial paper where it has no notice or knowledge of any infirmity in it, and it correctly declares the law with reference to the purchase of such paper. This instruction does not undertake to deal with the question of the burden of proof, and of the bank's duty to show that it was in fact an innocent purchaser.

[4] Appellants further insist that a verdict should have been directed in their favor, for the reason that the notes sued upon are void under section 3690 of Kirby's Digest, and that, whenever a statute declares a note or other contract void, they are and must be so in the hands of every holder We need not discuss the application of that section of the Digest to the facts of this case, for the reason that the law of this case, on that question, was settled in the opinion on the former appeal, where it was said:

mast pole and a boom pole. The mast pole was 42 feet long, and was intended to stand in a perpendicular position, and to be held in such position by guy wires, one end of which was fastened to trees, stumps, or what is known as "dead men," and the other end was attached to a wrought iron or steel cap or plate on the top end of the mast pole. The holes through which the guy wires were to pass near the rim of the cap were cut straight or square through, leaving sharp edges. The edges were not rounded out, nor were they lined with rings or shields to prevent the wearing away of the galvanized iron guy wire. The guy wire was softer than the plate or cap through which it passed. The naked wire should not have been allowed to touch the edges of the holes of the cap through which it passed, as the sharp edges of the iron would wear and cut away the strands of the guy wire.

The derrick, in its use, had become loose, so that the mast pole would swing back and forth some 8 or 10 inches, and as it swung it would jerk on the cable or guy wires on the other side. The boom pole was fastened to the mast pole near the lower end and stood at an angle of about 45 degrees and swung around as occasion required. The mast pole and the boom pole were equipped with pulleys, cables, guy wires, and implements of machinery necessary to constitute a working derrick.

Fred Bunting, on the 22d day of July, 1912, was in the employ of the Burdette Cooperage Company as a common laborer, and on the above day he was temporarily engaged as a hooker. There were two hookers, whose duty it was to adjust the hooks to the ends of the logs. When these hooks were fastened into the ends of the logs, a signal would be given, the engine would start, and the drum would wind up the cable to which the logs were attached, and in this way the logs would be slowly lifted. While lifting a log in this way, one of the guy wires broke, causing the derrick to fall, which resulted in the injury to Bunting, from which he died the following day. He was conscious and suffered great pain from the time of the injury until his death.

The derrick had been put up about a year before, and had fallen down by reason of a heavy pull made on it. It had been reconstructed about two weeks before the injury by the company's millwright.

The above are substantially the facts giving the evidence its strongest probative force in favor of appellee.

that the wires were old and rust-eaten, rotten, and so worn and in such a weakened condition that, while the log was being lifted, one of them gave way, causing the derrick to fall, whereby Bunting was struck and injured, and afterwards died from the result of such injuries.

The appellant denied the allegations of negligence set up in the complaint and pleaded affirmatively that the death of Bunting was the result of an accident, and also set up contributory negligence and assumed risk. The cause was submitted to the jury. The appellant asked the court to direct a verdict in his favor after the evidence was adduced, which the court refused, and to which ruling appellant duly excepted. No objection is urged to any other rulings of the court in the giving or refusing of instructions. A verdict was returned in favor of the appellee in the sum of $1,000 damages for pain and suffering and in the sum of $4,000 for the pecuniary loss to appellee by reason of the death of her husband. Judgment was entered for the sum of $5,000, and this appeal has been duly prosecuted. Other facts stated in the opinion.

W. J. Lamb, of Osceola, and H. T. Harrison and T. D. Wynne, both of Fordyce, for appellant. Gravette & Alexander, of Blytheville, and J. T. Coston, of Osceola, for appellee.

He

WOOD, J. (after stating the facts as above). [1] 1. The court did not err in refusing to direct the jury to return a verdict in favor of the appellant. It was a question for the jury, under the evidence, as to whether or not the appellant had exercised ordinary care to provide its servant Bunting with reasonably safe appliances with which to perform the work in which he was engaged at the time of his injury. The testimony of appellant's millwright, who constructed the derrick, was to the effect that he used the usual material in the construction of the same and constructed the same in the usual manner that such machinery was constructed. stated that the holes through the cap to which the guy lines were fastened were round holes, drilled out for the purpose of passing the guy lines through; that he ran the guy lines through the holes, bent them over, parted the ends, and brought them back on the main line and made them fast; that they were all fastened in that way. This way of fastening them he considered safe. Sometimes they are fastened with clamps, sometimes with half-hitches. These different ways are all safe. He had put up several this way. The wires could be fastened in the manner indicated "so fast and close that they would break before they would let go."

next morning anyway, before the derrick was moved off the skidway, the cable was examined to ascertain the condition of the ends of the wires where the same were broken. The cable was broken where the edges of the wrought iron holes in the cap cut into it. There had been some jerking back and forth. Some of the ends of the strands were bright, and some were not. Some of them had the appearance of having been broken before the accident. Some of the ends had turned dark. Half, anyway, of the ends of the strands were dark, indicating an old break. There was testimony tending to show that all derricks will fall when their guy wires are worn and broken. A piece of the guy wire, showing the broken end, was exhibited and identified as the end of the guy wire where the same had broken at the time of the injury complained of.

There was testimony on behalf of the appellee tending to show that the mast pole was loose, playing back and forth a distance of 8 or 10 inches, and allowing the same to jerk, and that the holes through the plate on top of the mast pole were left without covering, exposing the strands of the guy wires to the edges of the wrought iron or steel plate, thereby causing the guy wires to be cut in two and worn off.

Notwithstanding the testimony of appellant's millwright that he constructed the derrick in the usual manner, and that he considered it safe, the above testimony on behalf of the appellee made it a question for the jury to say as to whether or not the appellant had exercised ordinary care to furnish a safe derrick.

[21 2. Appellant contends that the falling of the derrick was an inevitable accident. Bunting, at the time of his death, was hooking tongs in the end of a log. He was assisted by a fellow employé at the other end of the log. These employés stood at the opposite ends of the log, and each hooked the tongs in the end next to him. They fastened their hooks in each end of the log, and a signal was given to the derrick operator to lift the log. He made two or three efforts to lift same, and raised the log between three and six feet from the ground. While the log was suspended in this position, the hooks of Tardy, Bunting's fellow employé, pulled out, causing his end to fall to the ground instantly, and the derrick fell at the same time the hooks pulled out. It is contended by the appellant that the jerk caused by this fall caused the derrick to give way by breaking the guy wire opposite the suspended hook at or near the top of the mast pole. But this does not show conclusively that the falling or the jerk was the result of an accident. It was a question for the jury as to whether or not appellant was negligent in failing to so construct the derrick that it would not fall when

above testimony. The slipping of the tongs or hooks from the end of the log, thereby causing the same to fall and producing a sudden jerk or strain upon the guy wires, the jury might have found was one of the incidents of work of that character, which appellant, in the exercise of reasonable care, should have anticipated and should have exercised ordinary care to have counteracted. It was a question for the jury as to whether or not, if such care had been exercised in the construction of the derrick, the same would have fallen, notwithstanding the slipping of the tongs and the sudden dropping of the end of the log. The jury might have found that the exercise of ordinary care upon the part of appellant to properly construct the derrick would have prevented the breaking of the guy wires and the falling of the mast pole, and the resultant injury to Bunting.

[3] 3. The mast pole was 42 feet high, and the plate to which the guy wires were fastened was on top of the same. If the holes in this plate were defective, as the jury might have found, and if the guy wires, by reason of the sharp edges of these holes and the jerking of the mast pole, had been cut and worn so as to render them incapable of holding the mast pole under the strain to which it was subjected, these were not obvious defects, and therefore Bunting was not required to take notice of them. The jury might have found that they were caused by the negligence of the appellant. Bunting therefore did not assume the risk incident to such defects. They were not risks ordinarily incident to the employment in which he was engaged, but were caused by the negligence of the master, were unknown to the servant, and he did not assume them. Asher Byrnes, 101 Ark. 197, 141 S. W. 1176.

V.

[4] 4. If the defective condition of the holes through the cap plate, and the weakened condition of the strands of the guy wires caused thereby, contributed to the injury, and this was the result of negligence on the part of the appellant, it would be liable, notwithstanding the slipping of the tongs from the end of the log may have also concurred in producing the result. Such being the case, the negligence of the company was but one of the co-operating causes of the injury, without which, as the jury might have found, same See 2 Labatt on would not have occurred. Master & Servant, 813; Railway Co. Triplett, 54 Ark. 299, 15 S. W. 831, 16 S. W. 266; Kansas City, Ft. Scott & Memphis Ry. Co. v. Becker, 67 Ark. 1-8, 53 S. W. 406, 46 L. R. A. 814, 77 Am. St. Rep. 78; Marcum v. Three States Lumber Co., 88 Ark. 28-37, 113 S. W. 357.

V.

[5] 5. Over the objection of appellant, appellee was permitted to testify that her husband, Bunting, was good to his family; that he was interested in the education and train